Last time we talked about mediation in general and how you and your ex fit into it.
Today, in part 2, we are going to talk about . . . drum roll . . . THE MEDIATOR!!!
The mediator really can make or break your mediation session. The mediator leads, conducts, and hopefully enforces the rules in the mediation. But, the success of your mediation could depend greatly on how they go about this.
In every single mediation session I have been to, a couple of things have happened with the mediator:
1) The mediator takes both of us aside at least once, sometimes multiple times, and we talk to him or her separately.
This can be really good, and it can be really bad. Depending on the case and the reasons for why we are there, it can be helpful to have a couple of minutes alone time with the mediator and then a couple of minutes by yourself while they are with your ex.
My minutes alone with the mediator are generally spent with us discussing how the mediation is going, talking about the case in general, discussing what the mediator thinks of the positions I and my ex are taking, etc.
My minutes alone while the mediator is with my ex are generally spent getting a drink of water, calling my lawyer (or whoever your best support is to run things by them - you will probably find yourself wanting a second opinion, or even just someone else to talk to for a second).
So, you are wondering, why might this all be a bad thing? Sometimes, when the mediator has broken the parties apart, it breaks our mediation apart. And this is one place where you hopefully have a good mediator. I don't know if they mean to, but some mediators make things worse. More about this below.
Though sometimes my ex returns and the discussion is better than before. So, like I said, it can be good as well.
2) If either you or your ex interrupt each other, the mediator will call you out on it. They really don't like if you aren't respectful to each other. So, like I said in part 1, be a good listener in mediation.
Things to remember:
1) The mediator has no deciding power. At least where I live. They can not decide anything in my case. Think of them as a referee that is trying to get you both to play nicely.
2) The Mediator is not Perfect
I have actually, and multiple times, told the mediators to hold on and let my ex and I talk it out for a minute. Which makes me nervous, after all this is still someone with the court. But I have had multiple mediators inject their opinion or help when it is not needed and even anti-helpful. Or, and this bothers me a lot, for some reason the mediator takes your discussion on tangents and wants to focus on things that don't matter as much. Or they want to talk about something that has nothing to do with your case.
Mediation is not a therapy session. It is not a court session. In my opinion, keep to the matters at hand and what is important.
When I think that the mediator is messing with our chances to have a good outcome, I nicely ask them to wait a second while my ex and I hash it out (in the same room of course, don't ask them to leave).
What is really funny is when my ex and I agree that the mediator is messing with our chances of a good outcome. We have both asked the mediator to just wait a minute. Sometimes the thing we need is to just have a moment to work out the details. Sometimes.
I have also had to ask that we get back to the issues at hand.
It's simple, really. I have a vested interest in taking mediation seriously. If the mediator is going off on tangents and trying to make us discuss things that have nothing to do with our case, I try to pull the conversation back to the issues. Whether they are the issues that my ex brought or that I brought, I want to discuss those and not random other topics.
3) Don't give away your rights.
One time I had a mediator try to get my ex and I to agree to something that neither of us wanted and that didn't fit with our case. But the mediator was so intense about it, and so sure that this was a good thing. We didn't agree in the end, and it bothered me that she was pushing something that would not have been good for our case.
The mediators sometimes have good intentions, but they are not always your advocates. They are really just trying to get you guys to get along. They don't know your case like you do, they don't always get it.
And, they are not always right. I have had mediators that said a specific thing would probably happen in the court room should we end up there. Sometimes they are right, sometimes they are wrong. My point is just that Mediators are human. Sometimes they know, sometimes they don't.
4) A good mediator can be amazing.
If you find yourself a good mediator, hold on to them if possible. I have had a couple of mediators that I absolutely loved. They were impartial, but they knew the case and kept all of the history and parts of my case in mind.
If you find a good mediator, hold on to them if you can.
A good mediator is firm, getting you both to be civil and talk it out. A good mediator lets you hash it out yourselves when it is apparent that that is what is happening. A good mediator is nice and gives you helpful information.
5) It is also important to note that sometimes the court mediators are fully aware of your case, and sometimes they are not. Mine is a pretty volatile case with significant back history and important pieces, and yet I have arrived at mediation only to find that the mediators had no idea what my case was about. They handled it like every other case, which won't always work depending on the situation and topics you are disagreeing on.
6) Be nice to the mediator.
Mediators who are nice are so comforting. Be nice back to them. Or, if your mediator isn't nice, be nice anyway.
Also, though my mediators have always said that they don't talk to the judge or commissioner about the mediation, I have to wonder if anything ever gets said behind the scenes, stories get overheard, whatever. Don't alienate anyone at the court. As in all things, handle yourself professionally and nicely. Even the mediators I have had to ask to wait and give us a second while we talk have had good, nice interactions with me. You don't have to see eye to eye to get along.
Other thoughts:
1. Sometimes I feel it appropriate to bring my lawyer to mediation, sometimes I don't. I always could if I wanted to, but I usually don't feel it necessary unless there are just so many pieces to what we are talking about and I want support inside of the mediation. It is nice to have someone else in the mediation to hear what is said and to help come up with the agreement.
2. Instead of a normal mediator, you can also sometimes use family therapists, retired judges, a third party lawyer, etc. These all add an extra level of helpfulness to your case. They have other insight, other qualifications, and can answer some of your questions.
3. If you are in mediation and need a break, don't be afraid to ask for one. You can just get your wiggles out, go to the restroom, make a phone call or two, etc.
4. Don't feel ganged up on. If you are gained up on, do some serious inward soul searching. Have the strength to stand up for what is right when you are right and have the strength to back off when you are wrong.
I am sure that other things will occur to me in the future, and I may decide to write a part 3 at some point.
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